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TMI Blog2018 (3) TMI 1813X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ministry and finally placed for consideration of the Minister of State (Home), as also the Union Home Minister. A careful and harmonious reading of the Statement of Objections filed by the Central Government in juxtaposition with the file notings, leads to an inference that, though the State Government had not sent any report to the Central Government, the communication sent by the Commissioner of Police, was on the file of the Home Ministry and the same was considered. We may further record that, the Home Ministry's notings clearly refers to the communication sent by the Commissioner of Police. In the circumstances, we find no error in Central Government invoking suo motu power. As a corollary, the view taken by the Hon'ble Single Judge, amounts to substitution of Executive's opinion and therefore, not sustainable. It is also fairly well-settled that, doctrine of separation of power does not permit transgression of jurisdictions between the Legislature, the Executive and the Judiciary. We may hasten to add that, the Executive's decision may be called in question seeking judicial review. But judicial review is permissible strictly within well-defined paramet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Investigation Agency Act ('NIA Act' for short) directed the Superintendent of Police, NIA, Hyderabad to register the case and take up investigation. Accordingly, an FIR bearing No. RC-04/2016-17 was filed by the NIA. 8. Feeling aggrieved, petitioners presented two writ petitions with following prayers: (i) to set aside the order dated 05.11.2016 passed by the learned Magistrate permitting to add Sections 15, 16, 17, 18 and 20 of UA Act in the FIR registered as Crime No. 124/2016; (ii) to quash Notification No. 11011/33-2016-IS-IV passed by the Ministry of Home Affairs; (iii) to quash FIR and RC-04/2016-17 registered by NIA for offences punishable under Sections 109, 120B, 201, 150, 153A, 302 read with 34 IPC and Sections 15, 16, 17, 18 and 20 of UA Act; and (iv) to set aside the order dated 24.1.2017 passed by the Special Court extending minimum investigation period to 180 days. 9. The main grounds urged by the petitioners in support of their writ petitions are: that one of the petitioners is the District President of a Social organization called 'Popular Front of India'; that petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. 16. Shri Navadgi, further submitted that, an offences under the UA Act, are scheduled offences under the NIA Act. Sections 15, 16, 17, 18 and 20 of UA Act were included by the State Police. The NIA Act confers power upon the Central Government to direct the Agency to investigate into the matter either suo motu or upon a report received from the State Government. 17. Shri Navadgi, further submitted that, National Security is a matter of prime importance and concern. Scheduled Offences are required to be investigated thoroughly to ensure that offenders brought to justice. He strongly urged that, it is the prerogative of the executive to choose the investigating agency and the scope of judicial review of Executive's decision is very limited. He argued that, the decision rendered by the Hon'ble Single Judge is unsustainable in law as it amounts to substitution of Executive's opinion by the Court. 18. He further submitted that, the Central Government had placed two sealed covers containing sensitive information of this case before the Hon'ble Single Judge. He prayed that, this Bench may also peruse the material placed to satisfy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. He further submitted that, inclusion of provisions of UA Act, is an attempt to malign the image of the organization. The scope and object of the said UA Act is to deal with terrorists defined under Section 15, when such acts are done by 'banned organizations'. The 'Popular Front of India', is not a banned organization and therefore, inclusion of offences under the UA Act, was unwarranted. 25. He further submitted that, the National Investigation Agency is established to investigate into such matters, which involve sovereignty, security and integrity of India. The offences punishable under Sections 302 and 34 IPC, mentioned in the FIR, could have been dealt by the Local Police. Central Government has blown up the incident out of proportion and directed the NIA to investigate the matter. Hence, this is a case of arbitrary exercise of executive power. With these submissions, he prayed for dismissal of writ appeals. 26. We have carefully considered submissions made on behalf of Union of India, State Government, NIA and Writ Petitioners. We have also perused the records contained in the two sealed covers submitted by the learned Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under Sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation. (emphasis supplied) 31. As could be seen from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, have stated thus: 4. The Central Government vide letter dated 18.11.2016, requested the Government of Karnataka to furnish information about the case FIR No. 124/2016 in accordance with Section 6(2) of the NIA Act, 2008. The Commissioner of Police, Bengaluru City, vide his Letter No. Addl.CP/CRM/CC/14416 dated 24.11.2016 confirmed invocation of section 15, 16, 17, 18 and 20 of the UAPA in this case. The copy of communication dated 24.11.2016 is produced herewith as annexure R-1. Based on the report of the Government of Karnataka and the information received from other sources, the Central Government was of the opinion that scheduled offences has been committed and keeping in view, the gravity of the offence, the Central Government directed the NIA in accordance with section 6(5) of the NIA Act, 2008 who take up the investigation of the said case. 36. A careful and harmonious reading of the Statement of Objections filed by the Central Government in juxtaposition with the file notings, leads to an inference that, though the State Government had not sent any report to the Central Government, the communication sent by the Commissioner of Police, was on the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the considerations for and against disclosure appear to be fairly evenly balanced the courts should, I think, uphold a claim to privilege on the grounds of public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill effects of non-disclosure. 15. It is difficult to define in exact terms as to what is national security . However, the same would generally include socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, cultural cohesiveness, external peace, etc. 16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All ER 122 (HL)] : (AC p. 192C) ... [in the matter] of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs--legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers. 43. So far as the scope of the judicial review is concerned, we may quote following passages from the decision of the Hon'ble Supreme Court in the case of Heinz India (P) Ltd. v. State of U.P., reported in (2012) 5 SCC 443: 61. The above principles have been accepted even by this Court in a long line of decisions handed down from time to time. We may, however, refer only to some of those decisions where the development of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64. There is almost complete unanimity on the principle that judicial review is not so much concerned with the decision itself as much with the decision-making process. (See Chief Constable of the North Wales Police v. Evans [(1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL)]). As a matter of fact, the juristic basis for such limitation on the exercise of the power of judicial review is that unless the restrictions on the power of the court are observed, the courts may themselves under the guise of preventing abuse of power, be guilty of usurping that power. 65. Frankfurter, J.'s note of caution in Trop v. Dulles [2 L Ed 2d 630 : 356 US 86 (1958)] is in this regard apposite when he said: (L Ed p. 653) ... All power is, in Madison's phrase, 'of an encroaching nature'. ... Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. 66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al jurisdiction, intra-court appeal would not lie as the same is not provided in Clause 10 of the Letters Patent. Needless to emphasise, if an appeal in certain jurisdictions is not provided for, it cannot be conceived of. Therefore, the reliance placed upon the larger Bench authority in Hari Vishnu Kamath [Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233] does not render any assistance to the argument advanced by the learned counsel for the respondent State. (emphasis supplied) 46. In these appeals, Union of India are aggrieved by the decision of the Hon'ble Single Judge, setting aside Home Ministry's Order. Challenge to the Executive's decision, in our view, cannot be brought within the purview of 'anything connected with the criminal jurisdiction'. Therefore, in our view, the ratio laid down in the said decision does not apply to the facts of this case, as no criminal proceedings are adjudicated in the Writ Petitions. 47. Further, Section 4 of the Karnataka High Court Act, 1961, provides for an appeal from an order passed by the Hon'ble Single Judge before a Bench consisting of two other Judges of the High Court. This aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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